Williams v. Wethered

Walker, J. This suit was instituted in the fall of 1865. Wethered sued Fondren and Page, to recover back two tracts of land, the one containing two hundred and the other six hundred acres. The lands were contiguous. The two hundred acre tract had been occupied as a homestead, and a portion of the six hundred acre tract was, perhaps, included. This tract belonged to F. M. Wethered, in his own right. The two hundred acres were community land. Frances E. Wethered, the wife, joined her husband in the deed to this tract. The deed was made in compliance with the statute. The six hundred acres were the individual property of the husband, and, as he had a right to do, he deeded this without his wife joining in the deed. The consideration of these deeds was paid in slaves, and the original purpose of the suit was to set aside the conveyances for failure of consideration, the slaves having been emancipated as one of the results of the late civil war. The original design of the suit appears to have been abandoned. In October, 1866, Otis L. Williams, the appellant, intervened, claiming the land by purchase from Fondren, Page having disclaimed all interest in the suit. In March, 1867, [132] Mrs. Wethered intervened, and claimed a homestead of two hundred acres from the six hundred acre tract; and the only question insisted upon now is, is she so entitled to a homestead? The evidence shows that after the sale of the lands, Wethered and his family settled temporarily on the six hundred acre tract, living in a small cabin house, in a very contracted manner, to which the family had been unaccustomed, and from which they suffered some mortification, the lady of the family repeatedly apologizing to visiting friends, explaining that they were preparing and fitting up a home elsewhere, which they hoped soon to occupy. The place of the new home was indicated to more than one witness by Mrs. Wethered, as a place near Colonel Gathing’s, on the Hannah Boon survey. In a portion of this survey, F. M. Wethered, the husband, appears to have been a tenant in common with brothers and sisters. The new home being prepared, Wethered and family moved into it.; and were residing there at the commencement of this suit. We have held and again hold, that a homestead may be acquired by a tenant in common, in a common estate, without prejudice to the interests of co-tenants; and that, on partition, equity will respect the rights of the improving tenant, and give him the benefit of his homestead improvement, wherever it can be done without prejudice. The evidence in this case shows that the lands improved by F. M. Wethered are of no more than an average value with the other lands. We do not think that the family of Wethered acquired a homestead right on the six hundred acre tract. They appear to have been upon it only as the tenants at will of Fondren. We believe they have acquired a homestead right on the Hannah Boon survey. On that branch of this case first presented to the court, a question of grave import to the people of this country was presented. In the sale of slaves it was customary to warrant the [133] slave “ a slave for life; ” but this warranty has been interpreted by the courts as applicable only to a description of the slave, distinguishing him from a hired servant, or one bound to service for a given term, and not as a warranty that the slave should remain such for life. We adopt this view, and apply the maxim res peril domino. The judgment of the District Court must be reversed, and the cause dismissed. Reversed and dismissed.